Former VA pathologist charged with deaths of three veterans
By LISA REIN | The Washington Post | Published: August 20, 2019
FAYETTEVILLE, Ark. — Federal prosecutors on Tuesday charged a former Veterans Affairs pathologist with the deaths of three veterans and a scheme to cover up years of drug and alcohol use on the job that caused him to misread thousands of fluid and tissue samples of ill patients.
Robert Morris Levy was indicted on three counts of involuntary manslaughter and 28 counts of mail fraud, wire fraud and false statements to law enforcement officials. The Department of Veterans Affairs has told members of Congress and investigators that Levy's misdiagnoses, which amounted to more than 3,000 cases, were responsible for at least 15 deaths and the inappropriate treatment of many other patients.
During 12 years as chief pathologist here and in leadership roles on oversight boards and medical committees, Levy, 53, read almost 34,000 pathology slides from aging veterans. He had their lives in his hands, prosectors said in unsealing their indictment. But his addiction and attempts to cover it up with lies and dangerous practices - even after the VA paid for a lengthy inpatient treatment program led to deaths and other life-threatening trauma for veterans, they said.
"I don't think anyone would ever have imagined that a pathologist would use his knowledge and expertise in order to do something like this," Duane Kees, the U.S. attorney for the Western District of Arkansas, said at a news conference after unsealing the criminal indictment.
The charges unsealed Tuesday mark a rare criminal case against a physician, in or out of government, in a profession where mistakes or incidents of negligence are most often addressed in civil court through malpractice claims, authorities said.
VA officials on Tuesday called Levy's alleged misdeeds an isolated case. But they are already prompting a reckoning and questions of oversight from investigators, veterans groups and Congress for the country's largest medical system - a sprawling, decentralized network of 1,200 hospitals and smaller clinics that serve 9 million veterans a year.
Kees, a veteran, said he brought a limited number of manslaughter charges "in order to bring the most serious and prosecutable case."
VA Inspector General Michael Missal, whose office in 2018 began an investigation of Levy's actions and of agency missteps in overseeing and addressing his behavior, said Levy betrayed veterans' most basic trust.
"When veterans go to VA for their health care, they expect to be helped and not harmed," said Missal, whose office brought the criminal case with Kees.
To avoid detection of his severe substance abuse problem, Levy used his knowledge of toxicology and the science of blood testing and urinalysis to devise a dangerous solution, prosecutors said.
Levy routinely took a substance called 2-methyl-2-butanol (known as 2M2B) to mask the alcohol level in his blood. The substance, not approved for individual use, cannot be detected in routine tests for drugs and alcohol. And it can be lethal if too much is taken, Kees said.
In this way, Levy intentionally misled the Mississippi state medical license board into believing that he was clean, the indictment said.
"He knew exactly how much to use for it not to be fatal," Kees said.
Levy, an Air Force veteran whose VA salary was $225,000 a year, was fired from the VA last year.
Levy's diagnoses and the information he entered in patients' medical records "largely influenced decisions about their course of treatment," prosecutors said.
From 2005 to 2017, Levy read slides and assisted radiologists, surgeons and other physicians during procedures called "needle biopsies," rendering clinical diagnoses for about 24,000 veterans.
They were patients from rural and often low-income communities of northwestern Arkansas, southwestern Missouri and eastern Oklahoma. He did not treat veterans in person but from his pathology lab on the third floor of Specialty Building 21 in the back of the medical center's campus. He was tasked with a crucial medical role - diagnosing cancer and other diseases in aging veterans who fought in World War II, Korea, Vietnam, the Gulf War or in Iraq and Afghanistan, and those who served but did not see combat.
Many of these veterans rely solely on the VA for their medical care, lacking private insurance.
An 18-month review of Levy's cases found that almost 10 percent of his diagnoses involved clinical errors, more than 10 times the normal misdiagnosis rate of 0.07 percent for pathologists.
Hundreds of the misdiagnoses were not serious, VA officials said. But the mistakes led to at least 15 deaths, authorities said, and other serious illnesses for veterans whose cancers or other illnesses were not diagnosed or were diagnosed when they should not have been, leading to unnecessary treatment.
Levy, appearing at his arraignment Tuesday in a federal courtroom here in a gray striped prison jumpsuit, pleaded not guilty. He awaited his turn on a crowded docket, slouched over and solemn, his hands shaking from time to time as if with tremors. Occasionally he glanced to the bank of prosecutors and investigators seated in the room.
Levy stood out: The other defendants, most facing drug charges, told the judge they had completed high school. When asked for his level of education, the pathologist, trained at the University of California and Emory University with a sub-specialty in hematopathology, responded, "MD."
Levy told Judge Erin Wiedemann that he had secured an attorney only Monday. She set a trial date for Oct. 7, and Levy was returned by a U.S. marshal to the county jail in Fayetteville, where he has been since his arrest late last week.
Prosecutors described a sinister disregard for veterans' lives as Levy knowingly entered false diagnoses for three veterans whose biopsies he read, one in 2009 and two in 2014.
One patient wrongly diagnosed with diffuse large B-cell lymphoma, a type of cancer he did not have, received the wrong treatment and died in months. Another patient died of squamous cell carcinoma that spread after Levy entered a wrong diagnosis of small-cell carcinoma in his record.
The third patient received a benign test result for prostate cancer and as a result was not treated; he died in 2016 after the disease spread.
In two of the cases, Levy falsified records to claim that his deputy had concurred with his diagnosis, a required peer review for first-time malignancy cases.
The VA fired Levy last year after an investigation of driving under the influence. But his termination followed a tumultuous tenure, particularly in recent years, during which his colleagues in the pathology lab complained that they witnessed erratic behavior from him while on the job. Their complaints went unheeded, the indictment alleges.
Following an incident of erratic behavior, Levy entered a VA program for impaired physicians in Mississippi in 2016 and returned to work. But a year later he appeared at a meeting of fellow pathologists and oncologists that he was chairing, unable to stand and slurring his words, according to documents and interviews.
His medical privileges were suspended, but he continued to perform administrative work until the DUI arrest and was fired in April 2018.
At the heart of the case, say investigators, former employees and VA patients in northwestern Arkansas interviewed by The Washington Post, is how 13 years of missed diagnoses, many of them of fatal diseases, went undetected and why distress calls from employees went unheeded.
The VA has long struggled with issues of access to patient care and whether its physicians are vetted carefully enough for misconduct and mistakes that could endanger patients, when they are hired or on the job. Some said Levy's impaired behavior on the job was well known for years but little was done to stop him.
Rep. Bruce Westerman, R-Ark., who with his colleagues in Arkansas's delegation to Congress has aggressively monitored the VA's outreach to veterans affected by the case, said he is furious at what he described as a "lack of oversight."
"Of all the medical professionals, the person you really don't want messing up is a pathologist," Westerman said in an interview. "If you have cancer, you want to know about it. If you don't have it, you don't want to be treated for it.
"There were poor procedures in place, or they weren't followed like they should have been. Levy had a record of being impaired on the job and continued to evaluate cases."
In a statement before Levy was charged, Kelvin Parks, director of the Fayetteville medical center, offered his "sincerest apology to the Veterans and family members negatively impacted by this now-fired former employee."
"In instances where his conduct did not meet the high standards Veterans and taxpayers expect from us, we are holding ourselves accountable, letting Veterans and families know their options and keeping the community informed," the statement said.
Darren O'Quinn, a Little Rock attorney and pharmacist retained by Levy to represent him, said in an interview that he is advising Levy on a legal strategy and was driving to Fayetteville late Tuesday to meet with his client.
A VA spokeswoman, Jessica Jacobsen, called the case "an isolated incident" in an email and said the agency has "strengthened internal controls" to ensure that errors are "more quickly" identified and addressed. She declined to describe the changes.
Parks has said there was a "vulnerability" in the internal case review process that sometimes allowed supervisors to review their own cases. In the future, he said the hospital will have someone from the quality-control department manage and oversee all case reviews.